¶1There was no error in denying the motion for a continuance. No valid excuse was given for deferring, for a period of nine months after suit commenced, all effort to obtain the testimony of the absent witnesses. Neither does the affidavit show sufficient reason for the failure of appellant to attend the trial.
¶2Where there has been a conversion of property, and, prior to suit, it has been returned to and accepted by the plaintiff, or if he has recovered the same, the return or recovery does not bar an action for the conversion; such fact may, however, be shown in mitigation of damages. Moak’s Underhill on Torts, 97, and cases cited; Murray v. Burling, 10 Johnson, 170; People v. Bank of N. A. 75 N. Y. 547.
¶3When appellant compelled appellee to hitch his mules to the wagon and drive to Probst’s, he not only exercised duress over appellee’s person, but also dominion over his property; and this dominion was further asserted by appellant’s order, which was obeyed, that the teams and wagon should be left at Probst’s. These acts were inconsistent with appellee’s control of the property, and practically a denial of his right so to do. Coupled with the fact that appellant made no effort or offer to return the wagon to appellee, they fairly create the presumption that the former’s control was exercised for his own benefit.
¶4“Any distinct act of dominion wrongfully exerted over one’s property in denial of his rights, or inconsistent with them, is a conversion; ” and this is true whether such wrongful dominion be exercised for the trespasser’s own or for another’s use. Cooley on Torts, 448, and cases in note 5; Addison on Torts, 467.
¶5The fact, if it be a fact, that appellant, after carrying appellee before the justice, and causing him to be incarcerated in the county jail, returned and took the mules, but left the wagon, does not avoid liability for the original conversion.
¶6*31In view of all the evidence before us, we think appellant answerable in this action for the value of the wagon when converted, less its value when recovered by appellee.
¶7In our judgment, therefore, the amendment of the complaint allowed at the trial did not set up a new cause of action.
¶8It is admitted by the pleadings that at the time of the conversion appellant had a valid lien upon a portion of the property for $216 and interest. That the same existed by virtue of a chattel mortgage given to secure a promissory note for that amount.
¶9The jury evidently did not deduct this sum from the value of the property as found by them, and upon this appellant predicates a claim of error.
¶10Appellee avers and attempts to prove an agreement by which this debt was to have been paid in work for appellant. But it is sufficient to say that, without such agreement, the jury would not have been warranted in allowing the claim.
¶11The note and mortgage were not offered in evidence; neither of them appears in the amended pleadings; at the time of the conversion, when.ownership of the lien is admitted, the note was not yet due; for aught that appears, before the maturity thereof it may have been negotiated, and, of course, with it the mortgage lien would have passed to the assignee; if appellant still owned the note, and desired credit for the amount, he should have given proof of such ownership at the trial.
¶12The mortgage, as already suggested, was not before the jury; and, therefore, the clause claimed to have been embodied therein, which authorized taking possession of the property whenever appellant felt insecure, could in no event have influenced their verdict. But upon this subject, it is to be observed that appellee asserts and endeavors to establish the consent of appellant to his removal of the property at the time it was seized by the latter.
¶13*32It is difficult to determine what was meant by the instruction considered under the eighteenth asssignment of error. But we are unable to conclude that it could in any way have prejudiced appellant’s rights.
¶14We discover no error or irregularity for which the judgment should be reversed. It will, therefore, be affirmed.
¶15Affirmed.